Air Cargo Security Requirements (10Nov2004 NPRM) 49CFR Parts 1540, 1542, 1544, 1546, 1548 (DOCKET No. TSA-2004-19515) RIN-1652-AA23 COMMENTS SUBMITTED January 10, 2005 to the U.S. DEPARTMENT OF HOMELAND SECURITY Transportation Security Administration (via the docket web site at http://dms.dot.gov) by AIRPORT CONSULTANTS COUNCIL Paula P. Hochstetler, President 908 King Street, Suite 100 Alexandria, VA 22314 Phone: 703-683-5900 Email: PaulaH@ACConline.org Page 1 of 12
The Airport Consultants Council (ACC) appreciates the opportunity to present the following comments regarding the NPRM Air Cargo Security Requirements, issued 3Nov2004 and published in the 10Nov2004. The ACC is the trade association that represents consulting firms that are involved in the development of airports and related facilities and services; public sector/government-affiliated firms, educational institutions, associations and other organizations engaged in activities directly related to the aviation industry; and businesses that supply equipment, materials and products to airports. The ACC has 230 member firms. PREPARATORY NOTE BY ACC: (1) The NPRM appears in the, November 10, 2004 (Volume 69, Number 217), pages 65257 through 65291. (2) The NPRM is structured by the TSA to consist of a preamble ( pages 65257-65283), and the actual proposed regulation, The Proposed Amendment ( pages 65283-65291). (3) ACC s comments relate only to the actual proposed regulation, The Proposed Amendment ( pages 65283-65291). COMMENTS 1 65283 1540.203 Operator Responsibilities. 65286 1544.228 Security Threat Assessments for Cargo Personnel The proposed amendment creates a Security Threat Assessment requirement applicable to those individuals authorized unescorted access to cargo. Under existing 49CFR Part 1542.209(b), each individual desiring unescorted access to a SIDA, or who authorize others to have unescorted access, are required to undergo a CHRC (Criminal History Records Check) prior to having such access. As to the proposed amendment, it is not clear what benefit the introduction of a new Security Threat Assessment clearance mechanism will provide. Some staff may fail the CHRC but pass the new Security Threat Assessment test. The Proposed amendment is silent as to which takes precedent, CHRC or Security Threat Assessment, and what are the pass/fail criteria of the Security Threat Assessment. And, what is the likely relationship between this Security Threat Assessment and the TWIC program s unescorted clearance requirement. Page 2 of 12
2 65283-4 1540.203(a) Operator Responsibilities Section 1540.203(a) requires Each operator subject to this subpart must ensure that an individual with unescorted access to cargo must complete the Security Threat Assessment described in this section.. Several questions and comments are raised by this requirement to include: 1. To whom does this requirement apply? a. Specifically, does this requirement include personnel in the manufacturing and shipping phase of preparing air cargo? b. If so, then does the TSA presume that an indirect air carrier (IAC) will be responsible for filing a Security Threat Assessment application on each loading dock employee, and transport driver in the shipping chain? 2. What about current IAC employees or other cargo related businesses; are these requirements retroactive? a. If so, for how many years into the past? b. How soon will current employees be required to file an application? c. If using the Security Threat Assessment, when will the TSA provide this list of disqualifying crimes and/or other conditions to applicants to determine their ability to be granted unescorted access to cargo? 3 65284 1540.207(c )(1) Appeal Procedures. Request for Materials As reads: Within 30 days of the date of service of the Initial Denial of Authorization for Unescorted Cargo Access, the individual may serve upon TSA a written request for copies of the materials upon which the Initial Denial of Authorization was based. Recommend: Suggest the sentence be rewritten for clarity as follows: Individuals receiving an Initial Denial of Authorization for Unescorted Cargo Access have up to 30 days from the date served, to serve upon TSA a written request for copies of the materials upon which the Initial Denial of Authorization was based. Page 3 of 12
4 65284 1540.207(c) (1) Appeal Procedures. The phrase/clause that materials upon which the Initial Denial of Authorization was based can be requested are empty words because the material is usually SSI or classified information, thus typically not released by TSA. Seems the term Appeal lacks verity. 5 65285 1542.205 Security of the SIDA. Essentially the proposed amendment extends the SIDA area to almost all aircraft cargo loading and processing areas. This is a significant increase in area for many airports, particularly those where the air cargo handling area for the all-cargo carriers is located at a significant distance from the passenger terminal, and is often completely separate in operations from the rest of the airport. In some cases, the operating staff at these cargo facilities are similar in scale to the whole airport as it exists. In these cases, the extension of the SIDA significantly increases the number of staff who have to have airport ID badges, and background clearances. In addition the increase in SIDA area means a substantial number of changes in: Signage Staff training and ongoing education programs. ASP (Airport Security Program), and EOP (Emergency Operations Plan) updates. This proposed amendment does not impact the belly cargo air carriers to the same extent, many of which were already subject to SIDA and similar restrictions at many airports, but not all. For the future, the proposed amendment has potential impact on overall airport design. In the medium term (2-4 years), if a cargo area is SIDA, and if such cargo area becomes a secured area [see 1540.5], the impact would be even greater as it would require access control, patrols and the like. Airports such as Ontario and Oakland with large cargo-only facilities would be significantly impacted. We therefore say that airports should not be required to extend cargo SIDA into tenant lease areas. Cargo SIDA should be on that part [or those parts] of an airport where cargo is loaded on or unloaded from cargo aircraft. Page 4 of 12
6 65285 1542.205(a)(2) Security of the SIDA. The issue is the blurring of airport/tenant responsibility. Prior to the proposed amendment, many airport operators leave the airside management of any all-cargo area(s) to the tenant(s) on the basis that the area(s) are not SIDA nor secured area, but that appropriate security measures are taken at the demarcation between the all-cargo area(s) and any secured area. [Note: 49CFR Part 1542.113 requires a Tenant Security Program whenever said tenant assumes responsibility for specified security measures of the secured area, AOA, or SIDA.] If an all-cargo area is to be in a SIDA, what is the responsibility of the airport as to such Cargo SIDA, to ensure compliance with the regulations and patrol and monitor the operations as the airport does in the passenger terminal SIDA. Such responsibility should be contained in the proposed amendment. Further, airports should not be required to extend cargo SIDA requirements into tenant lease areas. Cargo facility operators and Indirect Air Carriers will be faced with significant operational issues if the TSA requires the airport to expand SIDA requirements to an entire tenant facility. 7 65285 1544.101 Adoption and Implementation 65286 1546.101 Adoption and Implementation The cited Parts exclude certain cargo operations of aircraft of less than a minimum weight. But what happens when shipments on such aircraft are consolidated at a hub at which the next aircraft is covered by the proposed amendment? Does the cargo have to be inspected and screened at this hub prior to onward movement by air? This interline matter should be addressed in the Final Rule. Page 5 of 12
8 65285 1544.101(e)(1) Adoption and Implementation. As reads: (1) The requirements of Sec. Sec. 1544.215, 1544.217 etc Recommend: Please clarify the meaning of Sec. Sec.. 9 65285 1544.202 Persons and Property Onboard the All-Cargo Aircraft 65287 1546.202 Persons and Property Onboard the Airplane Air Carriers are to apply measures in their security programs to person who board the aircraft and to their property. Currently, charter air carrier operators may be given permission to have the screening done at the warehouse, or seaport, prior to arriving at the airport. 1. How will screening for crew members, fuelers, and other ground service or operational personnel that need access to the aircraft be accomplished? 2. What elements does TSA propose to be added to full, all-cargo, or other security program for the inspection of cargo for unauthorized persons, explosives, incendiaries and other destructive substances or items? 3. What equipment is TSA going to provide to accomplish this screening? 4. Will it physically fit into existing facilities? 5. Will TSA make provisions for personnel to conduct the screening as has occurred with passenger operations? 10 65285 1544.202 Persons and Property onboard the All-Cargo Aircraft Page 6 of 12
Section 1544.202 includes and for their property. This means that in addition to cargo crew, every mechanic, cleaner, and service person who boards [and may do so repetitively] must be screened each time for what he/she carries/wears. 11 65285 1544.205(a) Acceptance and Screening of Cargo. Section 1544.205 requires each aircraft operator to use procedures, facilities, and equipment described in its security program. This means no two air carriers will be alike in their procedures of accepting and screening cargo, nor will any one air carrier have procedures which meld with the next air carrier to whom he transfers cargo! TSA must describe the procedures. 12 65286 1544.205 Acceptance and Screening of Cargo. 65287 1546.205 Acceptance and Screening of Cargo. 65290 1548.9 Acceptance of Cargo. Mail handling. The issue of mail is under-addressed in the proposed amendment. Given that it is transported on a regular basis as belly cargo on passenger air carrier aircraft, and on allcargo air carrier aircraft, are the existing USPS procedures adequate and accepted in lieu of all the potential measures described in this proposed amendment? And if such USPS procedures are, should they not be sufficient for all other cargo? 13 65286 1544.205(b) Acceptance and Screening of Cargo. 65287 1546.205(a) Acceptance and Screening of Cargo. 65290 1548.9(a) Acceptance of Cargo. No measures are cited in this NPRM for actual physical cargo screening, ie., by physical search or by radiological or trace search techniques. Page 7 of 12
Does TSA realize the enormous manpower requirements for such screening! TSA seeks additional security for cargo being transported by air. If TSA does cite screening measures, it is imperative that such measures/methodologies of screening are expeditious. Current JIT (Just-in-Time) manufacturing philosophy assumes a certain shipping cycle, and the use of such services as an en route filed warehouse. If this capability is impacted by measures/methodologies that slow down commerce, the negative effect on commerce nationwide would be significant. 14 65286 1544.225 Security of Aircraft and Facilities 65287 1546.205 Acceptance and Screening of Cargo 65287-8 1548.5(b)(1) Adoption and Implementation of Security The NPRM requires control of areas in which cargo is stored awaiting transit or through which cargo passes en route to transit. Such areas in which cargo is assembled, stored, or routed must be assessed for security using a national minimum standard established by TSA. The current perimeter security standards for airports are virtually non-existent, the emphasis being placed on passenger terminal concerns. This underscores the need for a clear, concise, comprehensive TSA guideline that establishes materials, methods, and security levels commensurate with potential threat assessments, for the various segments of an airport s perimeter. 15 65286 1544.225(d) Security of Aircraft and Facilities. Section 1544.225 requires the aircraft operator to prevent unauthorized access to the operational area of the aircraft while loading or unloading cargo. Is this a transfer of airport access control responsibility for an Exclusive Use Area? If so, TSA should make clear. Page 8 of 12
Comment # Page CFR Part Title 16 65286 1544.239 Known Shipper Program 65287 1546.215 Known Shipper Program 65290 1548.17 Known Shipper Program Rather than the US Government [TSA] being the Known Shipper database keeper, why not spin off the function of "the administrative burden" by providing a quasi- or even nongovernmental organization (to avoid the antitrust implications) to appoint, certify and monitor Known Shippers via an online, real-time electronic processing scheme. This administrative entity would require each vendor/shipper perform via an adhesion contract, secure a bond/line-of-credit as surety (based on either numbers/values of transactions), transmit all activity transaction records electronically, and meet certain physical and personnel security standards subject to inspection. Errors or omissions would enable standard legal administrative recourse (including fines, attachment of bond and/or removal of appointments) for any breach, and the TSA would oversee this as COTAR and dedicate inspectors when needed. 17 65286 1544.239(a)(1) Known Shipper Program. This Section reads Determine the shipper s validity and integrity as provided in its security program., contains no criteria for the aircraft operator to use! The TSA must provide the standard criteria in the proposed amendment! Page 9 of 12
18 65287 1546.202 Persons and Property on board the Airplane. As reads: to prevent or deter the carriage of unauthorized weapons, explosives, incendiaries, persons, and other destructive substances or items.. Recommend: Starting at 1546.202, and in the remainder of the document, it may be appropriate to add the word chemicals to the list of unauthorized items, chemicals unauthorized because their carriage may be contrary to hazmat rules, or their individual properties could cause detonation. The list would then read as: to prevent or deter the carriage of unauthorized weapons, explosives, incendiaries, chemicals, persons, and other destructive substances or items. 19 65287-8 1548.5(b)(1)(i) Adoption and Implementation of the Security Program. Where does the Indirect Air Carrier (IAC) responsibility for controlling cargo begin because IACs accept cargo for shipment via telephone, fax, email, and other electronic manifest methods directly from manufacturers, shippers, consolidators, and ground freight transporters. TSA must clarify the intent of this section and present minimum standards for inclusion in IAC security programs similar to those mandated on airports and passenger air carriers. 20 65288 1548.7(a)(4) Approval of Security Program. Page 10 of 12
For the Indirect Air Carrier, as reads Duration of Security Program. The Security Program will remain effective until the end of the calendar month, one year after the month it was approved., means thousands of such must be processed annually. Such volume may require an additional ten (10) full-time-equivalent TSA workload! Why not say any program is continually in effect, and continually subject to TSA inspection. 21 65290 1548.13 Security Coordinators. Section 1548.13 specifies that Indirect Air Carrier (IAC) Security Coordinators must be appointed at the corporate level for the purposes of communications and points of contact with the TSA. While having an IAC point of contact with TSA at the corporate level is essential for major regulatory changes, who is the IAC point of contact with the airport operator. Will the TSA require that someone akin to a ground security coordinator be appointed by the IAC at each airport for local coordination and communication with the airport? Signed, Paula P. Hochstetler President Airport Consultants Council Page 11 of 12
Page 12 of 12